Apologies (Scotland) Bill Consultation The Scottish Mediation Network (SMN) is the umbrella body for Scotland s mediators.

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1 Apologies (Scotland) Bill Consultation The Scottish Mediation Network (SMN) is the umbrella body for Scotland s mediators. It aims to: related forms of conflict management and prevention voluntary and community organisations conduct and training SMN is pleased to respond to the Apologies (Scotland) Bill Consultation, as apologies can play a key role in the resolution of disputes. The Prime Minister s recent apology for the events surrounding the Hillsborough disaster has brought this issue into sharp focus, raising a number of questions about what makes a good apology and from whose perspective this should be judged. We acknowledge that we are responding from the perspective of the mediation profession. Q1. Do you agree that legislation is a necessary and appropriate means of addressing the issues identified? SMN recognises the importance of apologies. Many of our members can attest to the power of an apology delivered at the right moment and in the right manner. This can have both practical and emotional impact, sometimes unlocking longstanding conflict. However, our members experience has also alerted us to the risks of apology, which include at least two: 1) The half-apology (described by Prue Vines as a partial apology )1, usually characterised by an expression of regret but no admission of fault or responsibility. These can actually exacerbate the situation. To quote Aaron Lazare, they can fuel bitter vengeance rather than assuage the anger the gesture was strategically designed to alleviate. 2 Jack McConnell s 2004 apology for the historic abuse of Scotland s looked-after children has been described in these terms.3 2) The rejected apology. Where someone has made considerable efforts to apologise sincerely and unreservedly for their actions it is devastating if the recipient refuses to accept or acknowledge it. This generally chills the climate for consensual resolution. 3 Writing in the Guardian on 8 December 2004, Mark Gould wrote: McConnell's statement was carefully worded to take into account this concern: he said sorry on behalf of the people of Scotland, rather than the Scottish Executive. The shrewd distinction was crafted to protect ministers from potential legal action by around 1,000 Scots who alleged that they suffered abuse in children's homes, some as long ago as the 1940s. There is some controversy about the wisdom of legislating in this area. While many common law jurisdictions have passed Apologies Acts,4 a number of academic

2 commentators have suggested that formal legal protection may work against one of the key qualities of apologies: genuineness. Jesson and Knapp summarise research asserting that evidentiary exclusions rob apologies of their moral content and, in so doing, undermine the sincerity and, ultimately, the healing efficacy of apologies. 5 These researchers describe Minnesota s decision not to provide legal protection for apologies and to focus instead on robust physician-patient communication following adverse medical events. 6 Vines asks: does the bringing of the apology into the legal domain by protecting it make the apology into a different sort of thing...? 7 Taft goes further, asserting that when apology is cast into the legal arena, its fundamental moral character is dramatically, if not irrevocably, altered. 8 From the perspective of mediators, the power of an apology relies in large measure on qualities such as spontaneity, sincerity, believability and timing. All of these are hard to legislate for. On the other hand, we do not believe that an Apologies Act would in itself undermine the efficacy of apologies where these qualities are present. Another factor which has been explored by scholars is the likelihood that clients and lawyers view apologies in different ways. Robbennolt suggests that lawyers training and experience lead them to view apologies instrumentally, evaluating them according to their likely impact on liability. Following an extensive study she concluded: In contrast to laypeople, who show a tendency to be more amenable to settlement following an apology, attorneys set their aspirations higher and expect more as a fair settlement when an apology is offered. 9 Tamara Relis, in a study of parties and their lawyers in Canadian medical negligence mediation, coined the term parallel worlds to describe the different perspectives of attorneys and clients, whether plaintiffs or defendants. The parties repeatedly spoke of the importance of apology and explanation, of hearing and being heard; there was strong evidence that attorneys attached very little importance to these factors.10 Assuming that these responses are not particular to Canada, we can surmise that Scottish lawyers may also attach different value to apologies from their clients, affecting the advice they give and potentially limiting the impact of the Bill. In summary, while we think that legislation is, broadly speaking, a good idea it is important to recognise the risks: apologies which are poorly executed or rejected, the perception that apologies are not genuine and the possibility that the legal profession will view them instrumentally. Q2. Have you ever experienced any barriers to making or receiving an apology? If so please expand on this. While SMN cannot speak from an individual perspective, mediators do encounter clients who worry that an apology may be turned against them in subsequent proceedings. It is important, however, to stress that existing mediation practice provides adequate protection for most purposes. The majority of mediators ask their clients to sign an Agreement to Mediate containing a detailed confidentiality clause.11 Typically this provides that the conversation will be conducted on a without prejudice basis, meaning that anything said in the course of the mediation cannot be used in subsequent court proceedings. With this reassurance in place apologies are not uncommon, and there are no examples, to date, of the Scottish courts attempting to look behind mediation s veil of

3 confidentiality. There are undoubtedly some limitations on mediation s absolute confidentiality12 but these are likely to apply equally to any legislative protection for apologies. SMN is also encouraging the Scottish Government to extend the current confidentiality provisions which apply in cross border mediations to all domestic mediation.13 This raises issue for a potential Bill: does an apology given in the course of a mediation require any special protection? Even if the answer is no, it would seem sensible for the Bill to provide a statutory underpinning to the existing contractual basis for mediation confidentiality. Q3. Do you have any experience of the effect that apology legislation can make? Would you be more likely either to expect an apology, or to apologise yourself, if there was apology legislation in Scotland? See above. SMN would welcome legislation which underscores the without prejudice status of mediation discussions. A group from Scotland examined international evidence about apologies for the Health Professions Council (now the Health and Care Professions Council).14 They found that apologies were highly significant to those making complaints against health professionals, with Relis s Canadian study finding that 88% of medical negligence plaintiffs sought an apology.15 It is important to note, however, that an even higher percentage (94%) wanted an admission of fault. The Review also found evidence from the USA of significant savings once a less defensive approach to medical negligence claims was adopted,16 but apologies were only one element in a wider transformation of the previous deny and defend approach.17 There are lessons for Scotland here, in that the health providers who saw the most tangible results took a proactive approach to adverse medical events, appointing dedicated staff to act immediately by speaking to patients and medical teams, offering apologies where justified and Defend[ing] medically reasonable care vigorously. 18 This suggests that an Apologies Act will have limited impact if it is not accompanied by a broader review of the culture of defensiveness and minimal information which appears to have grown up around the failings of public bodies. Q4. Do you support the general aim of the proposed Bill? Please indicate yes, no, undecided and explain your reasons for this response. Yes. Insofar as the aim of the Bill is to remove unnecessary barriers to apologies, SMN believes this is likely to be a helpful building block in resolving conflict. People generally enter mediation with low levels of trust for their counterparts, and a failure to apologise (perhaps for fear of legal consequences) is often interpreted in its most negative light. However, as set out above, we echo the reservations expressed by some studies which suggest that formalising apologies could diminish their effectiveness. If mediation participants suspect that the other party is going through the motions they are liable to reject the apology. Q5. Do you consider the proposed definition adequate? What elements should be included in the definition in order to achieve the aims of the Bill? Should it include an

4 undertaking to review? Do you think that an undertaking to review is necessary for an apology to be effective? Please give your reasons. International evidence and common sense suggest that the definition of an apology is critical. We agree with the consultation that a comprehensive apology is the most desirable. As noted above, a partial or botched apology may do more harm than no apology at all. However, we think the definition provided is not sufficient. It is missing two key elements of credible apologies: a) an admission of fault or responsibility for what has happened; b) what the apologiser is going to do to remedy the situation. Scholars have examined in depth the importance of fault in a proper apology. Vines puts it trenchantly:... there is such a thing as a true apology and, whether public or private, an apology is not real unless it includes an acknowledgement of fault. 19 She goes on to describe the role of apologies in society, which includes healing and re-balancing for both victim and offender and the reinforcing of norms about what is right and wrong.20 Taft states: in the context of apology, sorrow is equated with feelings of remorse, shame, and repentance. 21 The admission of fault is critical to this. Without it, there seems little to be gained by the apology. It is a given that most of us regret that bad things happen to other people: but if we are the cause of those bad things we have a much more personal duty to do something to puts things right. This ties in to the second missing element: action to make things better. In ordinary language, how do I know you are sorry unless you do something about it? The definition of apology needs to include the remedial element, although Taft and others maintain that this is implied by the words I m sorry.22 We would commend the guidance on apology issues by NHS Education for Scotland.23 Its simple definition includes the Three R s: - Regret Meaningful, real, acknowledge wrongdoing; Just say sorry; Accept responsibility - Reason Be honest doesn t mean you will be sued; Unintentional and not personal; Trying hard to do the right thing - Remedy Next steps who will do what; Investigate to find out why; Provide feedback. Q6. Referring to the features lists, or others, what do you consider to be the key features of an effective or meaningful apology? See above. It is also important to acknowledge that the value of an apology is best judged by the person receiving it. This subjective quality makes it difficult to give a precise definition, but one element that is often underestimated is timing. Frantz and Bennigson found that apologies were more effective after sufficient time for the injured party to express his or her concerns and for the wrongdoer to express understanding o those concerns. 24 Mediation appears to provide one of the most favourable settings for apologies to take place at the optimum time.

5 Q7. Should the definition of an apology in the context of the proposal include admissions or statements of fault, or should they be excluded from the Bill s protection? For the reasons given above, it seems likely that apologies that omit admissions of fault will not be recognised by most people as apologies at all. However, we would reiterate the other point made by Vines and others: if the law provides complete insulation from the legal consequences of a full apology, it may devalue such apologies in the eyes of the recipients. It can be argued that the very thing that gives apologies their power is the fact that perpetrators of a harm recognise that they will face consequences by their admission. The current media coverage of the Hillsborough Disaster illustrates this well. David Cameron gave a full and unreserved apology, specifically acknowledging fault on the part of public authorities. However, the victims, while appreciating this act, immediately spoke of seeking justice against the actual perpetrators. There is a great deal of difference between a corporate acknowledgement of fault, however helpful, and an individual saying I was there, I was at fault and I am truly sorry. The fact that such a person would risk prosecution and civil liability is arguably what gives the latter type of apology its power and moral authority. Q8. How do you think the Bill should deal with statements of facts included with apologies? We would wish to distinguish two situations. The first is where an apology is made in the context of a mediation; the second all other apologies. When parties have signed an Agreement to Mediate, their conversation will be without prejudice. This applies to everything said in the course of the mediation, including any statement of facts about what happened. It seems likely that the courts will uphold this form of legal privilege on public policy grounds (with some exceptions).25 This renders mediation a particularly suitable setting for an apology to take place. For all other apologies we have a concern about the premise that the Bill would not apply to statements of fact which could be used to determine fault or wrongdoing and so secure redress for the person who has suffered the bad outcome. 26 There is a risk that this provision will create an incentive to offer partial or botched apologies. While the apologiser can safely say I am sorry, as soon as he or she says because x or y occurred they run the risk of losing the statutory protection. Explanation x or y would become a statement of facts and thus available as evidence. This provision could have the perverse effect of rendering more apologies meaningless to the recipient, because the apologiser is wary of giving any details along with the apology. It would also remove another important element of apology: the opportunity to receive an explanation of what happened. As noted above, even more medical negligence claimants sought explanations than apologies.27 Our recommendation is that, if statutory protection is to be given to apologies, it should apply to the whole statement. Any attempt to parcel out apology from facts will necessarily lead to highly legalistic arguments and advice.

6 Q9. In relation to non-criminal matters, should the Bill apply generally to all types of legal proceedings, or only to some? Please give examples of particular types of proceedings that you think it should cover, and any it should not, along with your reasons for their inclusion/exclusion. Should the Bill also extend to some less formal proceedings (e.g. certain complaints procedures)? SMN would take the view that the Act should apply as widely as possible. If particular exceptions are necessary they could be spelt out in the Act. Its provisions are also likely to be helpful in supporting complaints processes. Q10. While it is the intention that the proposal will apply to civil matters only, do you think that there are area of criminal law to which it should apply? Our colleagues in the Restorative Justice field have done considerable work in this area and we would recommend taking their perspective. SACRO, for example, have run a number of RJ projects. Q11. What is your assessment of the likely financial implications (if any) of the proposed Bill to you or your organisation? What (if any) other financial implications are likely to arise? If, as we suggest, mediation emerges as one of the most helpful settings for the giving of apologies, it may lead to greater demand for our services. Numerous mediators are currently providing services pro bono, or for little remuneration, and we would recommend that the Scottish Legal Aid Board consider creating a simplified route to enable clients to be legally aided for mediation without having to go through a solicitor (thus incurring further costs). Q12. Is the proposed Bill likely to have any substantial positive or negative implications for equality? If it is likely to have a substantial negative implication, how might this be minimised or avoided? See answer to Q11. If mediation is seen as particularly suitable for the giving of apologies, attention should be given to those whose access to mediation is restricted by low income, geography or disability.

7 Appendix A Sample confidentiality clause from an Agreement to Mediate 1. Confidentiality The entire process of mediation, including all communications prior to and during the mediation, is and will be kept confidential. The mediation shall be conducted upon a without prejudice basis. Nothing said, nor any document produced, during the process of negotiation (including, without prejudice to that generality, preparation before, or discussions after, the mediation session) shall be founded upon in any proceedings. Unless otherwise admissible, all documents, submissions and statements made or produced for the purposes of the mediation, whether oral or written, shall be inadmissible as evidence in any court or arbitration or other proceedings. No party may have access to the Mediator s notes or call the Mediator as witness in any court or other proceedings relating to the subject of the mediation. Exceptions The preceding paragraph shall not apply where: the life or safety of any person if they do not make such disclosure. A party may disclose information or documents obtained during the mediation to a person not present at the mediation where that party needs to do so in order to obtain professional advice or where the person is within that party s legitimate field of intimacy. A party disclosing information or documents in these circumstances must inform the professional advisor or any such person that the information or documents are confidential.

8 Footnotes: 1 Prue Vines The Power of Apology: Mercy, Forgiveness or Corrective Justice in the Civil Liability Arena University of New South Wales Faculty of Law Research Series, 2007, Paper 30, p.5 (Available from ) 2 Richard Lazare, cited in Lucinda E Jesson and Peter B Knapp My Lawyer Told Me to Say I m Sorry: Lawyers, Doctors and Medical Apologies William Mitchell Law Review, Vol. 35, No. 2, 2009, p.36 (Available from ) 4 Prue Vines Apologies and Civil Liability in England, Wales and Scotland: The View from Elsewhere UNSW Law Research Paper No (2010), available from Vines lists 46 jurisdictions from Australia, Canada, the UK and the USA. 5 Jesson & Knapp, 2009, p.31 6 Ibid. p.1 7 Vines, 2007, p.3 8 Lee Taft Apology Subverted: The Commodification of Apology 109 Yale Law Journal , p Jennifer K Robbennolt, Attorneys, Apologies, and Settlement Negotiations 13 Harvard Negotiation Law Review (2008) , p Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties. Cambridge: Cambridge University Press (2009) 11 An example of such a confidentiality clause is reproduced at Appendix A 12 Examples include evidence of a crime, impropriety, fraud and duress. See Charlie Irvine: Mediation Confidentiality: Limitations and a Proposal Kluwer Mediation Blog 13 Cross-Border Mediation (Scotland) Regulations 2011 (SSI 2011, no. 234) S.3 14 Charlie Irvine, Rachel Robertson and Bryan Clark, Alternative Mechanisms for Resolving Disputes: A Literature Review London: Health Professions Council, 2011, pp.22-27, Apologies, available from 15 Relis, 2009 (supra note 10) p See Susan J Szmania, Addie M Johnson and Margaret Mulligan Alternative Dispute Resolution in Medical Malpractice: A Survey of Emerging Trends and Practices 26 Conflict Resolution Quarterly (1) (2008) 71-96; 17 Richard C. Boothman, Amy C. Blackwell, Darrell A. Campbell, Jr., Elaine Commiskey and Susan Anderson A Better Approach to Medical Malpractice

9 Claims? The University of Michigan Experience. 2 Journal of Health and Life Sciences Law (2) (2009) , p Ibid. p Vines, 2007, p.5 20 Ibid. pp Taft, 2000 (supra, note 8), p Ibid. p NHS Education for Scotland The Power of Apology Focus, Spring 2010 Available from 24 Cynthia Frantz and Courtney Bennigson, Better Late Than Early: The Influence of Timing on Apology Effectiveness 41 Journal of Experimental Social Psychology, 201 (2005), cited in Robbennolt, 2008, p See Charlie Irvine Mediation Confidentiality: Limitations and a Proposal Available from 26 Apologies Bill Consultation, p Supra, p.3 at note 15